State v. Roubles
| Decision Date | 01 January 1891 |
| Docket Number | 10,737 |
| Citation | 9 So. 435,43 La.Ann. 200 |
| Court | Louisiana Supreme Court |
| Parties | THE STATE OF LOUISIANA v. W. P. ROUBLES |
APPEAL from the Thirteenth District Court, Parish of St. Landry. Lewis, J.
Walter H. Rogers, Attorney General, for the State, Appellee.
Laurent & Dupre, for the Defendant and Appellant.
An information was filed against the defendant charging him with having embezzled the amount of a draft he had been entrusted with by one William Burr, for the purpose of its collection which he collected and feloniously appropriated to his own use.
He was tried, convicted and a few days later was sentenced to imprisonment in the penitentiary for twelve months.
Errors are alleged in a motion in arrest of judgment, which are also made a bill of exception.
It is contended that the information is deficient in matter of substance in not charging that the defendant was in the employ of the person by whom he was entrusted with the collection of the draft; that it was not sufficient to allege that he had been entrusted with the collection, but that the capacity in which he was entrusted, whether as clerk, agent or servant, should have been stated.
In deciding the questions presented we must consult the statutes of our own State and the decisions of our courts.
Those of other States are not always safe guides, owing to the varying terms of the statutes creating the offence.
We copy from the statutes the words applying in this case:
"Any * * * agent * * servant who shall wrongfully use dispose of, cancel or otherwise embezzle any money, bill, note, check, order, draft, or any other property which he shall have received for another, or for his employer, principal or bailor, or by virtue of his * * trust or employment, or which shall have been entrusted to his care, keeping or possession by another, or by his employer, principal or bailor * * upon conviction thereof, or of having aided or abetted in the commission thereof, or having been accessory, etc., shall suffer."
The offence may be described as the embezzling of property designated by the statute by the person and under the circumstances specified therein.
It is the "fraudulent appropriation of property by a person to whom it has been entrusted."
Although the defendant was not in the regular employment of the prosecuting witness, the single act with which he is charged may have created the relation of principal and agent, or employer and servant.
The bare temporary charge, the entrusting him with the collection of the draft, may have made him quoad the collection, the agent.
In the matter of contracts the party who is charged with the responsibility of representing another is termed the agent, the party represented the principal; in non-contract law master and servant.
"A servant is commonly an agent; and ordinarily an agent is a servant. In the law of contracts the related parties are usually termed principal and agent; in the non-contract, master and servant.
In both there may be an agent or servant by estoppel, as well as by direct appointment." Bishop, Non-Contract Law, p. 694.
To constitute an agency, it is not necessary that there should be more than one act authorized, or more than one act performed, "unless this single act created the relation." Archbold, Vol. 2, p. 578.
In the case of the State vs. Jones, 9 An. 307, the defendant was indicted under the embezzlement statute of March, 1845.
There was an agreement between him and the prosecuting witnesses to purchase property on joint account. The latter placed a note in his hand to be delivered to the owner of the property in payment of his half of the price, which note the defendant did not deliver, but negotiated.
"The agreement between Holmes and Jones to purchase the schooner on joint account did not deprive the transaction of the character of agency, undertaken by Jones for Holmes in purchasing the one-half interest in the schooner for him." See also Bishop on Criminal Law, Vol. 1, p. 347, E. Ed.
It is contended by the defendant "that it was not sufficient to allege that he had been entrusted with the collection, but that the capacity in which he was entrusted, whether as clerk, agent or servant, should have been stated."
There can be no question that the defendant's fiduciary character must be averred.
It is not necessary, however, to allege the particular word of the statute, for the cases on embezzlement seem to employ them almost interchangeably, especially "clerk" and "servant," but the capacity "in which he was entrusted, whether as clerk, agent or servant, should be alleged.
The allegation must contain a word found in the statute, else it will ordinarily be defective." Bishop on Criminal Law Vol. 2, p. 349; ...
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